Gateway Storage Holdings Pty Ltd v JLRT Pty Ltd & Lyons
[2014] QCAT 291
| CITATION: | Gateway Storage Holdings Pty Ltd v JLRT Pty Ltd & Lyons [2014] QCAT 291 |
| PARTIES: | Gateway Storage Holdings Pty Ltd (Applicant) |
| v | |
| JLRT Pty Ltd James Lyons (Respondents) |
| APPLICATION NUMBER: | GAR448-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 23 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 488 of the Property Agents and Motor Dealers Act 2000 (the Act) the claim of Gateway Storage Holdings Pty Ltd (Gateway) against the claims fund established under the Act (the claim fund) is allowed in the sum of seventy thousand dollars ($70,000) (the said sum). 2. At the expiration of the time for appeal, the Chief Executive, Department of Justice and Attorney-General, shall pay the said sum to Gateway. 3. In the event of an appeal, the said sum shall not be paid until the appeal is determined. 4. Upon payment of the said sum JLRT Pty Ltd and James Robert Lyons shall be jointly and severally liable to reimburse the claim fund by paying the said sum to the Chief Executive, Department of Justice and Attorney-General. |
| CATCHWORDS: | OCCUPATION REGULATION – REAL ESTATE AGENTS – where claim by client upon statutory claims fund – where contract did not proceed – where deposit paid to agent not refunded on request – whether claim against fund maintainable – whether agent in breach of trust account duties – whether agent misappropriated funds – where order for payment out of fund Property Agents and Motor Dealers Act 2000 (Qld), s 385, s 408, s 470, s 476, s 488, s 512, s 530, s 533 Brown & Anor v Wilen Pty Ltd & Ors [2012] QCAT 324 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
The applicant Gateway Storage Pty Ltd (“Gateway”) claims $70,000 against the Claim Fund established under the Property Agents and Motor Dealers Act 2000 (“PAMDA Act”).
The evidence referred to below is drawn from material filed by the Chief Executive of the Department of Justice and Attorney-General (“CEO”) as statutory intervener.[1]
[1]PAMDA Act s 512.
The claim is founded on dealings between Gateway and the respondents (“Lyons”) in November 2012. Lyons told Gateway that they were effectively sub-agents of Chase Commercial Pty Ltd (“Chase”), and that the subject property was listed with Chase for sale. Those representations were false.
On 4 December 2012, Gateway signed a draft agreement[2] by which it offered to purchase from Superior Care Group Pty Ltd (“the vendor”) a parcel of land at 3218 Old Cleveland Road, Capalaba, Brisbane (“the subject land”) for the sum of $1,400,000.
[2]Contract for Commercial Land and Buildings (REIQ form) signed by vendor on 4 December 2012, Clause 3O page 2.
On the same day, in pursuance of that transaction, Gateway paid a deposit of $70,000 into an account in the name of James Lyons Realty Pty Ltd (now known as JLRT Pty Ltd)[3].
[3]Name changed to JRLT Pty Ltd on 16 July 2012: extract from ASIC records issued 13 September 2013.
On 18 December 2012, Lyons informed Gateway that the vendor had not yet signed the draft agreement referred to in paragraph [4] above.
On 4 February 2013, when the draft agreement was still unsigned by the vendor, Gateway informed Lyons that it no longer wished to proceed with the transaction.
On 19 February 2013 Gateway requested Lyons to return the deposit mentioned in paragraph [5], above, as it has not been returned.
On 1 August 2013 Gateway lodged a claim upon a fund (“claim fund”) established under the PAMDA Act[4], alleging a loss of $70,000 resulting from the unlawful failure of Lyons to return the said deposit.
[4]PAMDA Act s 408.
The PAMDA Act provides inter alia that a person who suffers financial loss in consequence of an event specified therein[5] may seek reimbursement from the claim fund.
[5]PAMDA Act s 470(1).
The CEO alleges that the conduct of Lyons, in relation to Gateway, involved breaches of subsections 385(4)[6] and 470(1)(e)[7] of the PAMDA Act, with a consequential loss to Gateway of $70,000.
[6]I.e. failing to pay to Gateway, out of Lyons’ trust account, moneys to which Gateway was entitled, within 14 days of Gateway’s written request.
[7]I.e. stealing, misappropriation or misapplication by Lyons of property entrusted to Lyons as agent for Gateway.
I accept the uncontradicted statements of fact by the CEO in his helpful submissions and supporting material. Extracts from the Westpac Banking Corporation’s records of Lyons’ “business cash reserve” account show the receipt of Gateway’s deposit on 4 December 2013, followed by a series of internet withdrawals of large, rounded amounts, leaving a credit balance of just $2.73 on 17 December 2013.
Applications against the claim fund exceeding $10,000 are to be decided by this Tribunal, which may allow the claim wholly or in part, or reject it.[8] In this case there is no suggestion that the claim be rejected; nor is it suggested that the amount awarded should be reduced in view of some neglect or default[9] on Gateway’s part.
[8]PAMDA Act ss 476(3), 488(1).
[9]PAMDA Act s 488(3)(a)(i).
In accordance with the Act,[10] I am satisfied, on the balance of probabilities, that an event mentioned in section 470(1) occurred, and that, in consequence of that event, Gateway suffered a loss of $70,000. I shall therefore order that Gateway be paid the sum of $70,000 out of the claim fund.[11]
[10]PAMDA Act ss 488(2), 488(3).
[11]PAMDA Act s 530.
I am required to name the person or persons liable for Gateway’s loss.[12] I find that those persons are the respondent JLRT Pty Ltd (formerly known as James Lyons Realty Pty Ltd) and, as sole director of that company at all material times,[13] James Robert Lyons.[14]
[12]PAMDA Act s 488(3)(c).
[13]Darroch v O’Neill Holdings Group Pty Ltd [2010] QCAT 307; Brown & Anor v Wilen Pty Ltd & Ors [2012] QCAT 324 at [16].
[14]Extract from ASIC records issued 13 September 2013, page 2.
If (as here) all parties are not present when a decision or order of the Tribunal involving the claim fund is made, the decision or order takes effect when it is published in accordance with the QCAT Act.[15] There will be an order that this decision be served upon Gateway, the respondent company, Mr Lyons and the Chief Executive, Department of Justice and Attorney-General, forthwith.
[15]PAMDA Act s 533(1)(b); QCAT Act s 125.
ORDERS
1. Pursuant to section 488 of the PAMDA Act, the claim of Gateway Storage Holdings Pty Ltd (Gateway) against the claims fund established under the PAMDA Act (the claim fund) is allowed in the sum of seventy thousand dollars ($70,000) (the said sum).
2. At the expiration of the time for appeal the Chief Executive, Department of Justice and Attorney-General, shall pay the said sum to Gateway.
3. In the event of an appeal, the said sum shall not be paid until the appeal is determined.
4. Upon payment of the said sum JLRT Pty Ltd and James Robert Lyons shall be jointly and severally liable to reimburse the claim fund by paying the said sum to the Chief Executive, Department of Justice and Attorney-General.
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